Withdraw the Senate Subpoenas

February 11, 1992

THE Senate Judiciary Committee stumbled last fall in its investigation of Anita Hill's allegations that she was sexually harassed by now-Justice Clarence Thomas. First, it failed to take Ms. Hill's charges seriously; then, after press disclosures of the allegations, it conducted a sensationalized but inconclusive public hearing.

Now another misstep: A special counsel appointed by the Senate to investigate press leaks has issued subpoenas to the two reporters who broke the Anita Hill story.

In summoning Nina Totenberg of National Public Radio and Timothy Phelps of Newsday to disclose who leaked an affidavit by Hill, Peter E. Fleming is recklessly setting the stage for a constitutional confrontation over the press's First Amendment rights. Since the reporters probably won't talk, even at the risk of contempt citations and resulting sanctions, what can Mr. Fleming achieve?

He could lose the ensuing legal challenges: A court - perhaps even the Supreme Court - could rule that the reporters have a constitutional privilege against disclosing their sources under these circumstances, so not to deter future whistle-blowers. And if Fleming wins, he will create a precedent that could chill the free flow to the public of important information about public officials.

Courts have properly ruled that reporters do not have an absolute privilege against disclosing information. In some instances, as when they are witnesses to crime, reporters should give their testimony like any other citizen. But many courts have also said that journalists may refuse to divulge information acquired in their work unless government has a very strong need for the information and has exhausted all other means of obtaining it.

It's doubtful that the Senate investigator could meet those standards in this case.

In breaking the Anita Hill story, the news media did precisely what a free press is supposed to do. The press revealed possible misconduct or ineptitude by public officials, and it prompted a national debate on an important public issue. The Senate should be wary of trying to punish the press for performing its constitutional role and handcuffing it in the future performance of that role.